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Samenvatting Fundamental Rights in Europe
Samenvatting van het vak Fundamentel Rights in Europe voor de studie Rechtsgeleerdheid aan de VU.
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Fundamental Rights in Europe literatureIntroduction to Fundamental rights in Europe
Fundamental rights do not exist in abstracto, just by virtue of their fundamentality. All rights
need to be created and to be secured by binding law of one or more states.
There are two major legal orders beyond the nation state within which such binding law can
be brought into being: the Council of Europe and the European Union.
Differences between European Union and Council of Europe
What are the essential differences between the Council of Europe and the EU.
‘The EU is something like a state’. The EU can in many respects be conceived of as a State. It
is structured along similar lines. There is a government-like institution consisting of three
bodies: European Commission and the Council working jointly with an elected Parliament
with substantive controlling and budgetary powers, there is a legislative body consisting of
the Commission, Council and Parliament, and there is a European Court of Justice which
resembles in many ways a constitutional court guarding the consistency and legality of
European Law, there is a European citizenship, there is a common currency. The European
Union has its own legal order fort he benefit of which the states have limited their sovereign
rights, albeit within limited fields, and the subjects of which comprise not only the Member
States but also their nationals. Independently of the legislation of Member States, Union law
may not only impose obligations on individuals but can also confer rights on them. Presently,
there is a huge body of binding Union law capable of setting aside and of replacing national
law of the Member States.
‘The Council of Europe is an international organisation’
In contrast to the EU, the Council of Europe must rather be conceived of as an association of
states who created a range of infuential treaties, but remained socereign vis-à-vis this
association. The institutions of the Council of Europe are referred to as a ‘Committee’, an
‘Assembly’ or a ‘Congress’, indicating that the states remain sovereign while cooperating.
Furthermore, there is a telling difference in how the participating states are named. In treaty
law, the normal term is ‘contracting states’. The term Contracting States is also normally
used fort he states participating in het Council of Europe, which indicates that their role can
still be defined in terms of treaty law. However, the states participating in the EU are called
Member States, clarifying that they have become part and parcel of the Union by their
accession. Terminating membership of this Union and unknotting the complex web of
mutual obligations is extremely complicated as the Brexit negotiations vividly illustrate.
Another important difference between the two can be seen in what they produce. The EU is
based on Treaties, but mainly produces governance and legislation. The Council of Europe
mainly produces treaties. Two of the most important treaties produced by the Council of
Europe are the European Convention for the Protection of Human Rights and Fundamental
Freedoms (Rome, 1950) and the European Social Charter ( Turin, 1961).
,Finally, the roles of the two European Courts are completely different.
The European Court of Human Rights (ECtHR) applies and interprets the European
Convention of Human Rights. It is a supranational court created by the ECHR where
individuals may issue a complaint against a contracting state which allegedly violated their
fundamental rights under the ECHR, after the national procedure has been completed. In
such complaint procedures, the ECtHR may pass three types of declaratory judgments:
declare the complaint non-admissible, declare that there was a violation of one or more
rights laid down in the ECHR or declare that there was no violation.
The Court of Justice of the European Union applies and interprets EU law. While it could be
labelled a “supranational” court, it is more appropriate to see it as one of the fundamental
institutions of the “quasi state” EU, functioning within Union law. For the purpose of this
paper the most important function of the Court of Justice (CJEU) is its task of answering
preliminary questions posed by national courts of the Member States. By its judgments the
CJEU provides binding interpretation of relevant EU law. In contrast to the ECtHR, the CJEU
only informs the national judges of its interpretation and it does not apply EU law, not
national law and thus refrains from deciding the conflict between the parties in the
underlying case.
History
The Council of Europe is older than the EU. It was founded in May 1949 by ten European
States. It now consists of 47 Member States. The seat of the Council of Europe is Strasbourg.
According to Article 1 of the Statute (Treaty of London, 1949), the aim of the Council of
Europe is to achieve a greater unity between its members for the purpose of safeguarding
and realising the ideals and principles which are their common heritage and facilitating their
economic and social progress.
In 1950, approximately one year after its own creation, the Council of Europe adopted the
European Convention for the Protection of Human Rights and Fundamental Freedoms
(normally referred to as European Convention of Human Rights, ECHR).
The European Convention of Human Rights comprises 13 provisions in which human rights
are formulated. These human rights ware no paper tigers but could be enforced by
individuals by issuing complaints against the contracting states with a supranational judicial
body, the European Court of Human Rights. This Court has the power to assess whether
states violated their obligations under the ECHR. Other treaties convened in the Council of
Europe have more resemblance to ‘normal’ treaties, though some of them also create rights
for individuals.
, The European Social Charter was established by the CoE in 1961. The ESC contains rights to
housing, health, education, labour rights, full employment, reduction of working hours,
equal pay for equal work, parental leave, social security, social and legal protection from
poverty and social exclusion, free movement of persons and non-discrimination, also rights
of migrant workers and that of the persons with disabilities.
Complaints of violations of the Charter may be lodged with the European Committee of
Social Rights. The complaint is examined by the European Committee of Social Rights which
declares it admissible if the formal requirements have been met.
The European Union started with the European Coal and Steel community , set up in 1951 by
6 countries (Belgium, France, West-Germany, Italy, the Netherlands and Luxembourg) to
regulate their production under a centralized authority. In 1957, the European Atomic
Energy Community (Euratom) and the European Economic Community (EEC) followed.
Under the Merger Treaty of 1967, these three communities were merged into that of the
EEC.
A more ambitious idea of a political union on the basis of common values was framed in the
Maastricht Treaty of 1993 under a new name: European Union. The EEC then became one of
the parts of the Union. As the goal of the community was no longer strictly economical, the
EEC was renamed European Community, deleting the word “Economic”.
Treaty law of the EU is nowadays laid down in three texts: Treaty on European Union (TEU),
Treaty on the Functioning of the European Union (TFEU) and Charter of the Fundamental
Rights of the European Union (Charter EU). The TEU contains the principles, objects and the
general institutional framework of the Union. The TFEU provides the more detailed and
operational principles and instructions. The Charter EU contains the fundamental rights to
be secured in implementing Union law.
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